Last year I wrote a bit about the ruling of the U.S. Court of Appeals for the First Circuit in Denmark v. Liberty Life, 481 F.3d 16 (1st Cir. 2007). The panel in that case fractured over the exact issue the Supreme Court recently addressed in Met Life v. Glenn: how an insurer's inherent conflict of interest should be factored into a court's review of a denial of ERISA benefits. Jonathan Feigenbaum, Ms. Denmark's counsel, petitioned the court to either re-hear the case or grant en banc review of the matter. The First Circuit held that request in anticipation of the Supreme Court's ruling in Glenn. In light of the recent ruling in that case, earlier this month the First Circuit withdrew its earlier decision in Denmark, granted the motion for panel re-hearing and set up a briefing schedule.
Denmark may be the First Circuit's first swing at the post-Glenn conflict analysis pinata. It should be interesting. One question (among many) in the wake of Glenn that Denmark tees up nicely is the degree to which discovery on the conflict of interest will be allowed in litigation. The facts and procedural background of the case point in the direction of allowing claimants to obtain in litigation information about the financial impact of denials on an insurer's bottom line.